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Case: 14-13027

Date Filed: 12/09/2015

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS


FOR THE ELEVENTH CIRCUIT
________________________
No. 14-13027
Non-Argument Calendar
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D.C. Docket No. 0:12-cv-61439-KAM

PHILLIP DENNIS LEIGH,


Plaintiff-Appellant,
versus
ARMOR MEDICAL SERVICES,
Frank Papillon, Medical Director,
BROWARD SHERIFF'S OFFICE,
Scott Israel, Sheriff,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
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(December 9, 2015)
Before ED CARNES, Chief Judge, JORDAN, and JILL PRYOR, Circuit Judges.
PER CURIAM:

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Phillip Leigh, a Florida prisoner proceeding pro se, is unhappy with the
medical care he received while at Broward County Jail. He filed an action under
42 U.S.C. 1983 against Dr. Franck Papillon, the jails medical director, and Al
Lamberti, Broward Countys former sheriff, alleging that they had violated his
Eighth Amendment rights by acting with deliberate indifference to his medical
needs. A district court granted summary judgment to Papillon and Lamberti
(collectively defendants). Because Leigh has shown only a disagreement over
the appropriate means of treating his ailments, rather than actual indifference to his
condition, we affirm.
Leigh was sent to a Florida state prison in 2005 for drug trafficking and
conspiracy. In 2006, Dr. Gonzalo Aguilar, an outside medical consultant,
diagnosed him with spasmodic dysphonia. In a January 29, 2010 report, Aguilar
noted that Leighs condition had not responded to Botox injections. In the same
report, Aguilar recommended that Leigh have selective laryngeal adductor
denervation reinnervation (SLADR) surgery and wrote urgent just below the
recommendation. Leigh did not have the surgery. Instead, he received two more
Botox injections in February 2010, neither of which improved his condition.
According to a grievance Leigh filed, he visited another specialist on March 23,
2010 and was told that SLADR surgery wouldnt improve his condition.

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Leigh eventually filed a state habeas motion. To enable him to attend an


evidentiary hearing in that proceeding, he transferred to Broward County Jail on
October 4, 2011. Comments on an intake form reflect that Leigh had no visible
injuries, was unable to speak loudly due to a medical condition, and reported a
history of spasmodic dysphonia. Leigh remained at Broward County Jail until
December 25, 2012, when he returned to state prison.
Papillon was the medical director at Broward County Jail during Leighs
time there. According to Papillon, he never met Leigh and was involved with
Leighs healthcare on just two occasions. First, on May 4, 2012, Papillon reviewed
Leighs medical chart as part of a random inmate chart review. Second, on May
16, 2012, after Leigh wrote a grievance requesting SLADR surgery for his
spasmodic dysphonia, Papillon reviewed the grievance and Leighs medical
records. Papillon was aware that SLADR surgery was not recognized as the
appropriate treatment for spasmodic dysphonia. It was his professional medical
opinion that there was no risk of serious harm if Leigh did not get the surgery and
that the surgery might actually make Leighs condition worse. Papillon thus
declined to approve Leighs request for surgery.
Leigh filed this suit in July of 2012, alleging that defendants had knowingly
kept him from getting the SLADR surgery that Aguilar had recommended. At his
deposition, Leigh admitted that his suit boiled down to a disagreement over the
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proper course of medical care in his case he wanted the SLADR surgery even
though medical personnel at Broward County Jail believed it was the wrong way to
treat his spasmodic dysphonia. He acknowledged that, since filing the suit, he had
concluded that Aguilar had committed malpractice by misdiagnosing him and
unnecessarily taking a biopsy of his vocal cord tissue. Despite his new belief that
he did not have spasmodic dysphonia, Leigh maintained that he needed the
SLADR surgery to alleviate troubles with his voice.
The defendants got an affidavit from Dr. Neil Chheda, a specialist in
medical conditions affecting the voice. He reviewed Leighs medical records and
concluded that Papillon had been right to advise against Leighs request for
surgery. According to Chheda, SLADR surgery is not the primary means of
intervention against spasmodic dysphonia, in part because it can result in
permanent, negative changes to the patients voice.
Based principally on testimony from Leigh, Papillon, and Chheda, the
defendants moved for summary judgment, arguing that Leigh had failed to
establish: (1) that they had been deliberately indifferent to his needs; and (2) that
they had actually harmed him. Leigh filed a sparse cross-motion for summary
judgment. The district court referred the motions to a magistrate judge, who
recommended denying Leighs motion and granting Papillon and Lambertis. In
particular, the magistrate judge found that Leigh had not presented sufficient
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evidence to establish conscious or callous indifference to his serious medical


needs, which is required for a deliberate indifference claim.
The magistrate judges report, issued on January 27, 2014, expressly advised
the parties that objections to it were due within two weeks. Leigh did not respond
until March 12, 2014. In his response, he requested a 30-day extension of the
filing period because he had not received the report until February 26, 2014. He
also sought leave to file a proper amendment. The district court granted Leighs
request for an extension, giving him until April 21, 2014 to file objections to the
report. The court concluded, however, that he was not entitled to further amend his
complaint. Nevertheless, on April 23, 2014, Leigh filed a Motion Affidavit in
Support of Summary Judgment, reframing his complaint and attaching documents
purporting to show that genuine issues of material fact remained in the case. He
followed that up with a Third Motion to Amend a 106-page document, filed
on May 7, 2014, requesting leave to amend his complaint and including
documentary evidence he had not previously submitted.
The defendants opposed both of Leighs motions, arguing that they were
meritless and untimely. The district court agreed. It construed Leighs Motion
Affidavit as an objection to the magistrate judges report and summarily denied it.
The district court also denied Leighs Third Motion to amend because it sought
to advance a new claim against Aguilar, was untimely, and failed to allege facts
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sufficient to support a claim of deliberate indifference. The district court adopted


the magistrate judges report in full and ordered summary judgment in the
defendants favor.
Leigh makes essentially the same argument on appeal as he did at the district
court and it is no more compelling here than it was there. To prevail on a claim of
deliberate indifference, a plaintiff must show that the defendant intentionally or
recklessly disregarded his serious medical needs in a way that injured him. See
Hinson v. Edmond, 192 F.3d 1342, 1345 (11th Cir. 1999). Leigh hasnt shown
that. The record makes clear that staff at Broward County Jail did not deny
Leighs request for SLADR surgery because they were indifferent to his condition
and needs, but instead because medical personnel at the jail determined that the
surgery was not a good way to treat his spasmodic dysphonia. Leigh disagrees
with the views of those medical personnel, but a difference in medical opinion is
not a sufficient basis for a deliberate indifference claim. See Goebert v. Lee Cnty.,
510 F.3d 1312, 1326 (11th Cir. 2007). Because Leigh hasnt shown that the
defendants were deliberately indifferent to his medical needs, his claims fail.
AFFIRMED.